1986 PLP 1853 (MLD)

Suleman Kasim for Appellants. Abdul Khair for the State. Date of hearing: 23rd February 1986. This appeal under section 185‑F of the Customs Act, 1969, (hereinafter to be referred as Act) is directed against the judgment, dated 25th September, 1977 of the Special Judge (Customs & Taxation) Karachi, whereby he convicted the appellants Muhammad Farooq and Muhammad Hanif under clause 89 of section 156 (1) of the Act and sentenced them to suffer R.I. for 6 months and to pay fine of Rs.10,000 or in default of payment of fine to undergo R .I. for 6 months more.

2. The facts of the prosecution as disclosed in the F.I.R. lodged by A.G. Pathan, Inspector Customs, Karachi on 4‑9‑1976 at 7‑30 p.m. are that he received information that accused Muhammad Farooq, Rauf, Shafi Ahmed and Qari alias Qari Chikna have actively engaged in Smuggling and selling of foreign cloth and in a Vauxhall Car No. KAN‑9547, foreign cloth will be brought to Motandas Market. On getting this information watch was kept by the Customs party in the vicinity of Motandas Market. The above car came and stopped outside the Motandas Market. The raid party intercepted the car and on search 12 Thans of foreign cloth were recovered from Dicky in presence of Mashirs Abdul ,Majid and Dost Muhammad, Appellant Muhammad Farooq was in the car. He was arrested and on his pointation the Custom Party proceeded house No.B‑106/Block‑6 Gulshan‑e‑Iqbal Karachi. As soon as they reached near the house a car bearing having number Plate KAF‑6988 was seen coming outside the above house. The Custom Party intercepted that car and found 15 Thans of foreign cloth The occupant of the car namely Shafi Muhammad was arrested on the spot. Thereafter the raid party 'in presence of the above Mashirs searched the house, as mentioned above and recovered 858 Thans of foreign cloth. The report was lodged under section 2 (s) of the Customs Act, 1969 punishable under section 156 (1) (8) and (89).

3. The prosecution in support of its case examined P.W. 1 Shamimul Haq owner of the bungalow, P.W.2 Mashir Dost Muhammad, P.W.3 complainant Abdullah Khan, P W.4 Hishamuddin, who assessed the value of the goods and P.W.5 Saeed Akhtar Investigating Officer.

4. Appellant Muhammad Farooq in his statement Exh.12 denied the allegation but stated that his signatures on same documents Exh.7‑A "search warrant" were obtained at Ghas Bunder. Appellant Muhammad Hanif in his statement Exh.13 denied to have taken the house on rent from where foreign cloth was recovered and stated that nothing was secured from his possession. He examined two defence witnesses namely Ahmed Diwan Exh.14 and Ikhlas Ahmed Exh.15. Appellant Farooq led no evidence in his defence.

5. P.W. Shamimul Haq is owner of House No.B‑106/Block 6 Gulshan‑e‑Iqbal and stated that he rented out premises to one Abdul Aziz son of Abba Umar at the rate of Rs.1,300 per month and such agreement was executed by Abdul Aziz. He has produced agreement as. Exh.5‑A. He stated that this agreement was signed by appellant Muhammad Hanif and rent was also paid by him. He identified appellant Hanif and stated that he was a man who took the house from him on rent and gave his name as Abdul Aziz. He has also stated that appellant Farooq and one Rauf also used to reside in that house and he used to see them. P.W.2 Dost Muhammad Exh.6 stated that on 4‑9‑1976 in the afternoon he was going towards Merewether Tower when he reached at Motandas Market. He found a white car standing there and one Custom Officer introduced himself and asked him as Mashir. The Custom Officer searched the car in his presence and opened the Dikky from where he secured 12 Thans of foreign cloth and arrested appellant Farooq who was standing near the car. He produced Mashirnama Exh.6‑A and further stated that appellant took them to County Club Road to a bungalow. He found a car coming out of that bungalow which was detained and from Dikky 15 Thans of foreign cloth were secured by Custom Police. The car was driven by applicant Shafi, who was also detained. He further stated thereafter they went to tie bungalow and on search Custom Officer secured 600 and some Thans of foreign cloth and some watch bands from different rooms of the house and such Mashirnama Exh.l6‑B was prepared which he signed it. He has given number of Thans as

658. P.W.3 Abdullah his evidence Exh.7 corroborated his version as given in the F.I.R. and stated that on receiving spy information he proceeded to Motandas Market with his staff and kept watch there where at about 3 p.m. a white car bearing No. KAN 9547 came there which was being driven by appellant Farooq. He detained the car and asked accused to get out. He picked up two mashirs having Dost Muhammad and Abdul Majeed who were passing from there The Dikky was opened and 12 Thans of foreign cloth were secured. He seized the car and cloth and prepared mashirnama Exh 6‑A . He stated that he interrogated appellant Farooq Who took them to a Bungalow at Gulshan‑e‑Iqbal where he was staying. When they reached the bungalow they saw one car coming out. They chased that car and intercepted it after covering some distance. The car was driven by one Shafi Muhammad. They secured 15 Thans of foreign cloth from the Dikky of the Car. They went back to the bunglow and served a copy of reasons of search on appellant Farooq which he signed. During the search he recovered 658 Thans of foreign origin and‑286 watch bands from different rooms of the house in presence of the same Mashirs and such Mashirnama Exh.B‑1 was prepared by him. He arrested Shafi also. He also stated that he obtained search warrant from Deputy Commissioner and produced that warrants as Exh.7‑A. He has also produced dictation receipts as Exhs.7‑B, 7‑C & 7‑D. He produced the F.I.R. as Exh.7‑E and stated that it is correct and bears his signature. He then handed over case papers to investigating officer for further investigation. P.W.4 Hishamuddin was Appraisor Custom House Karachi. He assessed the value of the property at Rs.57;000 and produced such certificate as Exh. 9‑A. P.W.5 Saeed Akhtar is investigating officer. He has stated that he examined A.G. Pathan, mashir Abdul Majeed and Dost Muhammad. He interrogated accused and also examined Shamimul Haq and owner of the house who produced tenancy agreement. He arrested Hanif and after investigation submitted the papers to Assistant Collector of Custom who filed complaint and charge‑sheet Exh,10‑A. He has also stated that he is well conversant with the signature of Attaullah.

6. I have heard Mr. Suleman Kasim for the appellants and Abdul Khair for the State. It is contended by the learned counsel for the appellant that in this case co‑accused Shafi filed quashment application which was accepted by the High Court and he was acquitted and evidence against appellants is identical to that of Shafi. It is also argued that case of appellant Hanif is distinguishable as he was not present at the time of search of the house and he used to reside Burns Road in SKY building. It is contended that on this, two defence witnesses namely Ahmed Diwan and Iklas Ahmed have examined. Mr Suleman Kasim has also argued that mashir Dost Muhammad is not from the locality and notice under section 171 of the Act was not served on the appellants. He has referred to the case reported in 1983 Pcr.L.J 620 P L D 1981 Kar.253 and 1983 S C M R

1. Mr. Abdul Akhair as supported the conviction of both the appellants.

7. Complainant Abdullah Khan and Mashir Dost Muhammad have fully supported the recovery made from the appellant Farooq. They have also stated that he led to the bungalow from where 658 Thans of foreign cloth were recovered. The owner of the house Shamimul haq has also stated that appellant Farooq and Rauf were residing in the same house there is nothing on the record to suggest that Dost Muhammad has bais against the appellant Farooq. He has clearly stated that he was going to Merewether Tower and oh the: way he was called by the Customs Officer to act as Mashir therefore, in these circumstances the provisions of section 103 Cr.P.C. do not attract. Not a single question has been suggested to complainant Abdullah and Mashir Dost Muhammad, about any enmity with the appellant. Their evidence has gone un challenged, as such there are no reasons to disbelieve their version. Appellant Farooq was caught and 12 Thans of foreign cloth were recovered from his vauxhall car and then he took the raid party to bungalow and the search was made‑properly after obtaining search warrants from Deputy Commissioner. The huge quantity of foreign cloth was recovered. The detention receipt Exh.7 was also signed by the appellant Farooq.

8. Reverting to the next contention about acquittal of co‑accused Shafi. The allegation against Shafi is that he found in possession of 15 Thans of foreign, cloth and his quashment application was allowed only on the ground that value of the cloth so seized was less than Rs.500, H therefore, the case was of adjudication and no Court could take cognizance of such offence. He has not been acquitted on merits. Therefore, appellant cannot, get benefit of acquittal of co‑accused Shafi. In this case the value of the goods has not been challenged. I am of C the view that prosecution has proved the case against the appellant Farooq beyond reasonable doubt. He has rightly been convicted.

9. The case of appellant Hanif is distinguishable The only evidence against appellant Hanif is that he took house on rent from Shamimul, Haq. He was not present in the house when foreign cloth was secured s It has also come in the cross‑examination from appellant Abdullah at the time of search the mother and sister of appellant Farooq was present. There is no other evidence against appellant Hanif. Prosecution has not been able to prove case against appellant Hanif. He is entitled to get benefit of doubt. He is acquitted and his bail bonds are cancelled. Appellant Farooq shall be remanded to custody and should serve out the remaining sentence. M.Y.H Appeal dismissed.